Recently, North Carolina passed sweeping anti-LGBT legislation. Why did this happen and what does this mean for LGBT residents? Here are the facts:
A Local Decision
- Businesses and public services/accommodations banned from discriminating against LGBT customers
- “Sexual orientation” legally protected under ordinance that also protects based on race, age, religion, and gender
- Trans people allowed to use bathrooms corresponding with their gender identity (as opposed to their biological sex)
Opposition to these protections centered around safety concerns for cis women in public bathrooms. Some believed the ordinance was too broad and could be taken advantage of by sexual predators.
Support for these protections centered around safety concerns for trans and gender-nonconforming people.
Backlash From The State Government
Feb 23, 2016: North Carolina legislature convened a special session to vote on House Bill DRH40005-TC-1B (aka House Bill 2), which was introduced in direct response to Charlotte’s LGBT nondiscrimination ordinance.
The bill was made public minutes before the session, giving the public an insignificant window of 30 minutes to provide their opinions on the proposed legislation.
- Neither trans people nor victims of bathroom assaults were given adequate opportunity to share their stories
The bill was pushed through state legislature with unprecedented speed.
- The voting committee had to request time to actually read the bill
- Many senators walked out when a vote was called, resulting in a 32-0 passage (in the Senate)
- Governor Pat McCroy signed the bill into law, creating the Public Facilities Privacy and Security Act
What does the Public Facilities Privacy and Security Act say?
Part 1: Requires single-sex use of multiple-occupancy bathrooms and changing facilities
- “Sex” to be determined by birth certificate (which can be changed)
- Applies to schools (anything controlled by “local boards of education” and “designated for student use”) and to public accommodations (“public agencies”)
- Private businesses, universities, and facilities can choose to create their own policies regarding bathroom and changing facility use
- Single-occupancy accommodations for trans and gender-nonconforming people are allowed
- “Including, but not limited to,” restrooms, locker rooms, changing rooms, and showers
Part 2: Wage and Hour Act
- Local governments banned from passing their own minimum-wage laws
- Local minimum-wage laws nullified
Part 3: Protection of Rights in Employment and Public Accommodations
- Banned discrimination “on account of race, religion, color, national origin, age, biological sex, or handicap”
- Sexual orientation and gender identity are not listed as protected rights in employment and public accommodations
- Places of employment and public accommodations can choose to enforce stricter nondiscrimination laws
Why is PFPSA a problem?
- The state government overrode local governments in an extremely undemocratic way
- Only 25% of voters opposed Charlotte’s nondiscrimination ordinance
- A bipartisan majority of 51% believe the state government should not interfere with Charlotte’s local laws
- All local ordinances regarding gender identity and bathroom use and nondiscrimination against LGBT people were automatically nullified
- Local governments can no longer write their own gender identity legislation or set their own nondiscrimination standards
- The state government will not allow civil suits based on this law
- “No person may bring any civil action based upon the public policy expressed herein”
- In states that have passed bathroom equality laws, there is no evidence of increased bathroom assaults
- Discriminates against, and is psychologically harmful (dysphoric), to trans and gender-nonconforming people
- Most trans people do not undergo sex-reassignment surgery and therefore cannot change the sex stated on their birth certificate to match their gender identity
- “About 70% of trans people have reported being denied entrance, assaulted or harassed while trying to use a restroom”
- “There is no rule that a person must look a certain way to use a certain restroom”
- Evidence in the rulings of other cases
- Doe v. Regional School Unit – Maine Supreme Court ruled that a trans girl had the right to the women’s bathroom at school because it was critical to her her psychological well-being and educational success
- Mathis v. Fountain-Fort Carson School District – “by not permitting the [student] to use the restroom with which she identities, as non-transgender students are permitted to do, the [school] treated the [student] less favorably than other students seeking the same service”
- Cruzan v. Special School District #1 – Minnesota federal appeals court ruled that it is not the job of the trans person to accommodate those who feel uncomfortable
Is This Really About Bathroom Safety?
PFPSA can still be exploited by sexual predators. Under the “accommodations permitted,” a sexual predator could pose as a janitor, maintenance worker, inspector, or assistant in order to gain access to opposite-sex facilities.
Additionally, how will the state enforce a law that is essentially based on how masculine or feminine a person looks? No one would notice if a cis-passing trans person used the bathroom of their gender identity. In that case, should ID’s be required to prove an individual is in the “correct” bathroom before they are allowed to use it?
Unfortunately, there is not an easy answer to the question of bathroom usage rights. It’s not like places can designate at least one bathroom as “gender-neutral.” After all, that would require acceptance and equality.